Eight Ways Drama Is Bound To Go Down At the Kavanaugh Hearing Today

Things are about to heat up over on Capitol Hill as Brett Kavanaugh’s confirmation hearing begins today. Here’s your go-to guide for the drama about to go down, with key issues that we can expect to come up.

1. Document Debacle

As is always the case prior to confirming a Supreme Court justice, the Senate Judiciary Committee requested background documents on Kavanaugh. Controversy first erupted when Sen. Chuck Grassley (R-Iowa) was accused of orchestrating a “cover-up” by requesting only a portion of relevant Kavanaugh documents from the nominee’s many years in government service. Specifically. Grassley requested 1) all emails sent to or from Kavanaugh when he worked in the Bush Administration; 2) “textual records contained in Kavanaugh’s office files”; and 3) documents about his nomination to the U.S. Court of Appeals.

However incomplete, even the request that was made isn’t going so well. The National Archives and Records Administration (NARA) responded earlier this month, saying that the documents requested constitute potentially 900,000 pages, which is more than three times the docs produced for Chief Justice John Roberts and Justice Elena Kagan combined.

Lastly, the entire process seems to be pretty bumpy. Last night, Senator Chuck Schumer (D-New York) called out the Trump Administration slow walking the Kavanaugh documents:

🚨🚨 The Senate was just given an additional 42,000 pages of Kavanaugh documents the NIGHT BEFORE his confirmation hearing. This underscores just how absurd this process is. Not a single senator will be able to review these records before tomorrow.

Although a confirmation hearing is not litigation, general courtroom sensibilities usually apply. We don’t expect the SJC to casually accept stonewalling that wouldn’t fly in Kavanaugh’s – or anyone else’s—courtroom.

2.Abortion Arguments

There’s no way we’re getting out of this hearing without some serious talk about Roe v. Wade. Donald Trump scored major campaign points whenever he promised he’d effectuate Roe’s undoing; Kavanaugh, for his part, appears ready to put Trump’s plans into action.

Discussions about Roe v. Wade are of serious import not only because reproductive freedom is a serious issue (and a favorite topic of media frenzy), but also because Kavanaugh’s attitude toward Roe may be exemplary of his general judicial philosophy. Normally, SCOTUS justices give great deference to stare decisis—the judicial principal of respecting settled law. Even right-leaning justices have, for decades, respected that Roe is good law, and have only decided cases that raise questions left open by Roe and subsequent decisions.

Kavanaugh, however, has made many a public comment that suggests he would consider actually overrulingRoe if a new case provided the opportunity. Expect Kavanaugh to field questions about his respect of past precedent and any plans he may have to turn America into Gilead. For his answers to be palatable to centrists like Senators Susan Collins (R-Maine) and Lisa Murkowski (R-Alaska), Kavanaugh needs to show some deference to longstanding precedent; to satisfy Trump supporters who responded to Trump’s campaign promise to “automatically overturn Roe,” however, he’d need to embrace a role as changemaker.

3. Obamacare Opinions

Obamacare is going to come up. Senate Democrats will be using Kavanaugh’s confirmation hearing as a platform to sound their battle cries in time for November. Healthcare will continue to be a hot topic, and Kavanaugh is expected to discuss his take on healthcare law – both for general political purposes, as well as for a take on pending litigation. There’s a case proceeding in Texas which will specifically address the constitutionality of the Affordable Care Act’s protections for pre-existing conditions, and Kavanuagh’s statements will surely be scrutinized. Look out for questions about “severability” – legalese for “when one part of a law is invalidated, what happens to the rest of that law?”

If Kavanaugh is appointed, the future of our health care would be in his hands. This is the moment where you have to look yourself in the mirror and ask, ‘What will I do to make sure this man is not the next justice on the Supreme Court?’

Republicans have something of a deserved reputation for skirting the rules of SCOTUS confirmation hearings (ahem, Merrick Garland), and we can expect Senate Dems to raise questions of procedural shadiness. Whatever past sins the Democrats may also have committed, both Neil Gorsuch and Brett Kavanaugh have been given hearings. That history, combined with Michael Cohen’s plea and corresponding finger-pointing at Trump, amounts to more than many Democrats are willing to bear.

I have cancelled my meeting with Judge Kavanaugh. @realDonaldTrump, who is an unindicted co-conspirator in a criminal matter, does not deserve the courtesy of a meeting with his nominee—purposely selected to protect, as we say in Hawaii, his own okole.

Senator Diane Feinstein (D-California), the ranking member of the Senate Judiciary Committee, was pretty clear about her position regarding Kavanaugh’s hearing:

“The possibility of criminal wrongdoing by the president, combined with existing doubts that Brett Kavanaugh believes a president can even be investigated demand further review of this situation. Brett Kavanaugh’s hearing should be delayed.”

5. Immunity Inquiries

This is bound to be a biggie. It’s one thing to discuss presidential immunity in a general, academic way; it’s another to do so when the president’s former lawyer has just told a federal court that the president conspired with him to violate federal law. True, Kavanaugh’s take on presidential immunity may not be a far cry from longstanding American legal tradition – but many legal scholars believe that Trump’s presidency raises novel issues.

6. Willing Witnesses

Speaking of presidents who need immunity, famed whistleblower and Watergate hero John Dean is set to testify as an outside witness against Kavanaugh. Dean’s testimony will be important not only in a “been there, done that” kind of way, but also because he has specifically said that he believes Trump to be “more dangerous than Nixon.”

7. Prickly Past

Unlike many other justices who bench-hopped through district and circuit courts for their pre-SCOTUS careers, Brett Kavanaugh comes with some major government baggage. Kavanaugh was part of Ken Starr’s staff during the investigation of Vince Foster’s death and President Bill Clinton’s improper conduct with Monica Lewinsky. Kavanaugh was also a President George W. Bush staffer, and was involved in the Bush v. Gore recount. There are still some open questions about whether, as associate White House counsel, Kavanaugh was involved with President Bush’s policies regarding detention and interrogation of Guantanamo Bay prisoners – as well as the truth of Kavanaugh’s answers when questioned about that topic in the past.

8. And of course, Hillary Clinton

Some way, some how, the following excerpt from the David Brock book “Blinded by the Right” is going to come up at Kavanaugh’s hearing. Brock, who founded Media Matters, wrote in that book that Kavanaugh was spotted mouthing the word “bitch” when Hillary Clinton’s face popped up on a television during Bill Clinton’s State of the Union Address in 1997.

Judge Brett Kavanaugh is at or near top of SCOTUS list, per several people close to President Trump. But oppo research for possible hearings already moving fast. Sources pt’ing to David Brock’s book “Blinded by the Right.” Kav alleged to have mouthed an expletive re HRC. Pg. 306. pic.twitter.com/k10MbCm4RR

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Elura is a columnist and trial analyst for Law & Crime. Elura is also a former civil prosecutor for NYC's Administration for Children's Services, the CEO of Lawyer Up, and the author of How To Talk To Your Lawyer and the Legalese-to-English series. She is a frequent media contributor, and is Of Counsel to Smedley & Lis, in Woodbury, New Jersey.
Follow Elura on Twitter @elurananos